Excerpt:.....which we have referred and to the case now before us. on the other hand, the privy council held very early that on principles of equity, justice and good conscience which are specially referred to in the civil courts act, the courts in india are at liberty to award interest in cases not coming within the purview of the interest act......law. in miller v. barlow (1871) l.r. 3 p.c. cas 733 the judicial committee point out that indian courts are courts of both of law and of equity and that they can award as damages interest not covered by the act. in hurroprasad roy v. shamaprasad roy i.l.r. (1878) c. 654 a similar principle was enunciated by the judicial committee. in hamiba bihi v. lubaida bibi i.l.r. (1916) a. 581 which was a case of dower, the judicial committee after saying that the interest act was not applicable allowed interest as damages. see also ahmed musaji saleji v. kashim ebrahm saleji i.l.r. (1915) c. 914 another decision of the judicial committee. there are decision of high courts in which, interest was allowed apart from the act. alagappa chettiar v. muthukumara chettiar i.l.r. (1917) m. 316 fakir.....

Judgment:

1. This is a suit by a Mahomedan co-sharer for recovery of her share of her father's property from her brothers and sisters. The right of the plaintiff, who was a minor, to sue was denied in the court-below but has not been pressed before us. The only two points which Mr. T. Rangachariar argued were : (1) whether the plaintiff is entitled to mesne profits of the immoveable property, and (2) whether she is entitled to interest upon her share of the assets of the partnership carried on by her father. On the first question it was pointed out to us that in the court below there was no allegation that mesne profits were not payable. There is no issue upon the point and there is no discussion in the judgment of the Court below about it. Issue 6 assumes that the plaintiff was entitled to mesne profits, and only raises the question of the deductions claimed by the defendants in their written statement. Under these circumstances we refused to allow the learned vakil to argue that point before us.

2. The second question has been argued elaborately by Mr. Rangachariar for the appellant and by the learned Advocate-General for the respondent. We nave come to the conclusion that the decree of the court below is right though not for the reasons given by it. It is clear from the admissions in the written statement and from the evidence in the case that the share of the plaintiff in the firm's assets was utilised by the 1st and 2nd defendants in the trade carried on by them and that profits were derived from that trade. The amount of profits alone had not been ascertained. The learned vakil for the appellant relied upon Kamalammal v. Perru Meera Levvai Rowther I.L.R. (1897) M. 481 : 7 M.L.J. 263 Subramania Aiyar v. Subramaniya Aiyar I.L.R. (1908) M. 250 Lala Kalyan Das v. Sheikh Maqbul Ahmad (1918) 35 M.L.J. 169 and the earlier Madras cases, and contended that as no notice of demand was made, no interest was allowable under Act 32 of 1839. All of them were cases under the Act. In the first place it must be pointed out that the Interest Act is not comprehensive of all claims to interest. Without going into details, it may be mentioned that the object of 3 and 4 William IV Chapter 42, Section 28 of which was extended to India by Act 32 of 1839 was to repeal the Usury Laws relating to interest. Prior to the enactment of 3 and 4 William there was a law in the reign of Edward the Confessor which absolutely prohibited courts from awarding interest in suits upon moneys lent. Attempts were made in the reign of Henry VIII, to mitigate the rigour of this prohibition. 3 and 4 William IV Chapter 42 was enacted with a view to meet such a demand. It is clear from the language of the Act that the provisions dealt with only a particular class of cases, and enabled the courts to give interest at the current rate under certain conditions. The framers were anxious that the right to interest, if any, otherwise possessed should not be interfered with by this enactment, and inserted the proviso to the effect that interest shall be payable ' in all cases in which it is now payable by law.' In India also, ancient texts can be quoted to show that there was a prohibition against the taking of interest on moneys lent. One text of Manu exemplifies the abhorrence felt by the ancient sages on this question. Manu stated: 'Neither a brahmin nor a Kshatria, though distressed, must receive interest on loins; but each of them, if he please, may pay a small interest permitted by law, on borrowing for some pious use, to the sinful man who demands it.' see Colebrooke's Digest, p. 28. It looks as if when '6 and 4 William was extended to India, these provisions contained in the Hindu Law were kept in mind. It is therefore clear that the Interest ' Act is not exhaustive of the subject.

3. There is another difficulty in the way of applying the Interest Act to the present case,. To attract its provisions the amount in dispute must be a debt or a certain sum payable at a certain time or otherwise. What is claimed now is a sum of money which on taking accounts would be payable to the plaintiff as her share. It was held in Omrita Nath Mitter v. Administrator General of Bengal I.L.R. (1697) C 54 that unless the amount is settled the Act is not applicable. In London Chatham and Dover Railway Co. v. South Eastern Railway Co. (1891) 61 L.J. Ch. 294 a claim to payment under a building contract to be paid monthly on the certificate of the engineer was held not to be a debt or sum certain, if the amount was disputed. See also Hill v, South Staffordshire Railway Co. (1874) L.R. 18 Eq. Cas 154. In Ward v. Eyre (1880) 18 Ch. Da. 130 it was held that a balance of account is not a sum certain within 3 and 4 William Chapter 42. The Calcutta High Court in Rutnessur Biswas v. Hurish Chunder Bose I.L.R. (1984) C. 221 acted on the same principle. Therefore the Interest Act has no application to the case before us and consequently the decisions relied on by the learned vakil for the appellant have no bearing on the matter we have to decide. On the other hand the cases to which the learned Advocate-General drew our attention establish that the Act was not intended to affect payments of interest or compensation in matters not coming strictly within the letter of the law. In Miller v. Barlow (1871) L.R. 3 P.C. Cas 733 the Judicial Committee point out that Indian Courts are courts of both of law and of equity and that they can award as damages interest not covered by the Act. In Hurroprasad Roy v. Shamaprasad Roy I.L.R. (1878) C. 654 a similar principle was enunciated by the Judicial Committee. In Hamiba Bihi v. Lubaida Bibi I.L.R. (1916) A. 581 which was a case of Dower, the Judicial Committee after saying that the Interest Act was not applicable allowed interest as damages. See also Ahmed Musaji Saleji v. Kashim Ebrahm Saleji I.L.R. (1915) C. 914 another decision of the Judicial Committee. There are decision of High Courts in which, interest was allowed apart from the Act. Alagappa Chettiar v. Muthukumara Chettiar I.L.R. (1917) M. 316 Fakir Mahomed v. Rangiah Goundan (1913) I.L.W. 181 Khetra Mohan v. Nishir Kumari Saha 22 C.W.N. 488 Mohamaya v. v. Ramkalawan (1912) Cri.L.J. 684 Chajmal Das v. Brji Bhukkh I.L.R. (1896) A. 511 and the Collector of Ahmedabad v. Lavji Mulji I.L.R. (1911) B. 255. Mr. Rangachariar contended that the above cases proceeded upon the principle that there was an established practice as to interest regarding the matter dealt with in them, and that the principle should not be extended to the case of a Mahomedan lady claiming interest on an unascertained sum of money due to her as her share of the trade. We fail to see any difference in principle between the cases to which we have referred and to the case now before us. The only decision which supports Mr. Rangachariar is Marian Beevi Ammal v. Kadir Meera Sahib Taragan 29 Ind.Cas. 275. In that case there has been no discussion on the question and the reference to the earnings of interest shows that the decision should be confined to the facts of the case. The learned vakil for the appellant relied very strongly upon the observations of the noble and learned Lords in London Chatham and Dover Railway Co. v. South Eastern Railway Co. L.R. (1893) AC. 429 for the proposition that in matters outside the Interest Act no interest is payable. The noble Lords who took part in the discussion, especially Lord Herschell, point out that there has been a course of decisions in England which tied the hands of Courts from awarding interest on equitable grounds; and they regretted that they were obliged on the principle of stare demises to decline to re-open the question. There is no such course of decisions in this country. On the other hand, the Privy Council held very early that on principles of equity, justice and good conscience which are specially referred to in the Civil Courts Act, the Courts in India are at liberty to award interest in cases not coming within the purview of the Interest Act. The Indian Courts have followed this rule for a long time. The courts in this country therefore are not hampered in the exercise of their equity jurisdiction in the same way that English courts have been.

4. It is not necessary, therefore, to refer to another argument of the learned Advocate-General which rested the claim to interest upon the existence of a quasi fiduciary relationship between the plaintiff and her brothers. We think the Subordinate Judge is right in allowing interest. But in our opinion, he ought not to have allowed more than 6 per cent. The current rate of interest in this country is ordinarily that and no special reason has been shown why it should be raised to 9 per cent, The analogy of the Trusts Act, Section 23, to which the learned Advocate-General referred us, hast no bearing on the present question and we are not prepared to allow compound interest at 6 per cent. The interest allowed will be reduced to 6 per cent throughout Subject to this modification we dismiss the appeal with costs.